New India Assurance Co. Ltd vs Thangammal And Ors

This civil miscellaneous appeal is directed against the Award, dated 28.04.2006, passed in M.C.O.P.No.2025 of 2001, by the Motor Accident Claims Tribunal / Chief Judicial Magistrate Court, Madurai.

The brief facts of the case are that this is a case of fatal accident. The claimants are the wife, minor son and mother of the deceased Jeyagodi. According to the claimants, the deceased is a Cook by profession and he was 37 years old at the relevant time. On 01.04.2000, he was engaged for cooking at Thayamangalam Mariamman Temple. After finishing his work, he was returning in a Mini Van bearing registration No.TN38 Z3313 owned by the fourth respondent and insured with the appellant - Insurance Company along with one Ramalingam. Both were sitting in the cabin of the Van. It is alleged that the driver drove the Van in a rash and negligent manner, resultantly the left side door got opened. Hence, the deceased fell down and sustained head injury. Even through he was taken to the Government Rajaji Hospital, but he succumbed to the injuries. Hence, the claimants filed a claim petition claiming compensation of Rs.10,00,000/-.

The claim was resisted by the appellant - Insurance Company mainly contending that the deceased Jeyagodi was a gratuitous passenger in a goods vehicle and hence, no liability can be fastened on the insurer of the vehicle. They have also disputed the manner of accident, age and avocation of the deceased.

Before the Tribunal, on the side of the claimants, two witnesses were examined and four documents were marked and on the side of the Insurance Company, one witness was examined and two documents were marked.

The Tribunal, upon consideration of the evidence adduced by the parties, came to the conclusion that the accident occurred due to the negligence of the driver of the Van and awarded compensation of Rs. 2,33,000/- together with interest at the rate of 7.5% per annum. Questioning the award of the Tribunal, the present appeal has been filed.

Mr.K.Elangovan, learned counsel appearing for the appellant - Insurance Company, would urge that the accident occurred due to the negligence of the deceased and if he was diligent, this accident could have been avoided. Hence, the Tribunal ought to have held that the deceased has also contributed negligence for the accident. It is next contended that the age of the deceased was 37 years at the relevant time and as per the decision of the Apex Court in Sarala Verma and others vs. Delhi Transport Corporation [2009 (6) SCC 121], the proper multiplier would be "15", but the Tribunal applied multiplier "16" and hence, the award is to be reduced accordingly. The learned counsel further added that the evidence adduced on the side of the claimants itself would prove that the deceased was a gratuitous passenger in a goods vehicle and hence, the Insurance Company cannot be made liable to pay compensation.

Per contra, Mr.M.Veilkani Raju, learned counsel appearing for the claimants submitted that the Tribunal, on proper appreciation of evidence, has rightly held that the accident happened due to the negligence of the driver of the Van and the award is also reasonable and hence, prayed for dismissal of the appeal.

Heard the rival submissions and perused the materials available on record.

In the case on hand, there is no dispute that the claimants are the legal heirs of the deceased Jeyagodi, who died in an accident on 02.04.2000. P.W.2, who is said to have witnessed the occurrence, has deposed that only due to the negligent driving of the driver of the Van, this incident had taken place. In support of the evidence of P.W.2, First Information Report (Ex.P1), Charge Sheet (Ex.P2), Motor Vehicle Inspector's Report (Ex.P3) and Judgment in the criminal case (Ex.P4) were marked. The evidence of P.W.2 and the exhibits referred above would show that the Police have registered a case against the driver of the Van and he pleaded guilty and paid the fine amount. So, the findings of the Tribunal fixing negligence on the driver of the Van do not warrant interference of this Court.

The claim petition was opposed by the appellant - Insurance Company contending that the deceased was a gratuitous passenger. It is relevant to note that in the claim petition as well as in the evidence, it has been categorically stated that the deceased was returning in the offending vehicle along with his goods. R.W.1 has admitted, in his evidence, that in the offending vehicle, six persons were permitted to travel. The Tribunal having found that the deceased was travelling along with the goods, has rightly rejected the contention of the appellant - Insurance Company that the deceased was a gratuitous passenger in the offending vehicle. It is well settled that 1994 amendment to the Motor Vehicles Act, 1988, covers the liability / risk of the owner of the goods or his authorized representative, who was travelling in a goods vehicle along with goods. So, I find no valid ground to overturn the findings of the Tribunal that the appellant - Insurance Company is liable to pay compensation.

Insofar as quantum is concerned, P.W.1 deposed that her husband / deceased was 37 years old at the relevant point of time and he was earning Rs.5,000/- per month. Since no documentary evidence was produced by the claimants, the Tribunal has taken annual income of the deceased at Rs. 20,000/- and by applying multiplier "16", after deducting 1/3rd towards his personal expenses, awarded Rs.2,13,000/- towards loss of income. As rightly, pointed out by the learned counsel appearing for the appellant - Insurance Company, as per the decision in Sarala Verma's case (cited supra), the proper multiplier would be "15" and hence, the claimants would be entitled to Rs.2,00,000/- towards loss of income. In respect of other heads, the Award of the Tribunal is reasonable and therefore it is confirmed. Accordingly, the amount awarded by the Tribunal is reduced from Rs. 2,33,000/- to Rs.2,20,000/-. The interest awarded by the Tribunal is maintained.

The claim petition is of the year 2001 and at that relevant point of time, the second respondent - second claimant was a minor and by now, he should have become major. So, the second respondent - second claimant is declared as major and the Tribunal is hereby directed to disburse his award amount.

The appellant - Insurance Company is directed to deposit the above modified award amount with accrued interest and costs, less the amount already deposited, before the Tribunal within a period of eight weeks from the date of receipt of a copy of this Judgment. On such deposit, the claimants are permitted to withdraw their respective shares in the award amount, less the amount already withdrawn, if any, together with proportionate interest and costs, as per the ratio of apportionment made by the Tribunal.

Accordingly, the civil miscellaneous appeal is partly allowed and the Judgment and Award, dated 28.04.2006, passed in M.C.O.P.No.2025 of 2001, by the Motor Accident Claims Tribunal / Chief Judicial Magistrate Court, Madurai, are modified to the extent as indicated above. No costs. Consequently, connected miscellaneous petition is closed.